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26 February 2019updated 09 Sep 2021 3:46pm

Trump is merely a symptom. The power of a “state of emergency” has long been the disease

It is not new for a president to declare a state of emergency – this time to build his wall – but the only thing to save democracy is a population aggressively wanting it back.

By Zachary Fine

President Trump’s recent declaration of a national emergency – clearing a pathway for him to appropriate the billions of dollars necessary for a border wall – was swiftly condemned by lawmakers and pundits of every stripe. With the decision looming, the New York Times preemptively denounced the act of “executive overreach,” observing: “The damage to American democracy threatens to linger long after his administration is no more than a dank memory.” 16 states have so far filed lawsuits to overturn the action.

The president’s declaration may seem like an affront to democratic principles, but it draws attention to the paradox that nags at the heart of democracy itself: broad uses of executive emergency power, especially in the 20th century, have been essential to democracies in times of crisis. The unsavoury truth, put simply, is that democracies have only survived by consistently resorting to anti-democratic measures.

In America, the highlights of a longer history of executive emergency power – in some cases constitutional and not in others – include Abraham Lincoln, who summoned an army of 75,000 in April of 1861 and channelled millions of dollars from the Treasury to private citizens to support the war effort, all without congressional approval; Woodrow Wilson, who was granted extraordinary powers with a number of statutes, from the Espionage Act of 1917 to the Overman Act of 1918 (the former radically constrained free speech and famously led to the imprisonment of the five-time presidential candidate and socialist Eugene Debs); and Franklin D. Roosevelt, who made abundant use of his constitutional and statutory emergency power during the Second World War – signing executive orders that enabled violations of civil rights, ranging from censorship of the domestic press to the internment of more than 110,000 Japanese and Japanese-American people.

The broad use of executive emergency power – in the US as much as in France, Germany, and the UK – has been historically bound up with warfare, but it’s now become a mainstay of peacetime democracies. Hungary’s Viktor Orbán declared a state of emergency in September of 2015, in response to the inflow of migrants, and employed it for nearly three years. In France, the state of emergency, or “état d’urgence,” triggered after the attacks in Paris on November 13, 2015, lasted almost two years; administrators were delegated the power to restrict public gatherings, to subject suspects to police raids and house arrest – all without judicial oversight.

Now, in Trump’s America, with much attention being given to the National Emergencies Act of 1976, it has been found that 31 of 58 so-called “emergencies” declared since the passage of the Act are still in effect.

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That democracies have frequently resorted to emergency measures, and survived accordingly, is not a justification for Trump’s strategy. Rather, it reveals that below the crisis is another crisis, one that’s more systemic: extraordinary uses of executive power have become all too normalised as a viable response to the glut of emergencies – whether real or imagined – that have, and always will, confront democracies.

Commentators and legal experts are right to point out the grossly indeterminate definition of “emergency” in the Act from 1976 – the law failing to specify what constitutes an emergency and leaving it to the discretion of the president – but the historical record proves that more rigorous definitions of emergency do not guarantee against dictatorial uses of executive power. Just as important, if not more, is a polity that aggressively desires democracy.

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Senator Lindsey Graham trumpeted on Twitter in January, after Trump first threatened to declare a national emergency: “Mr. President, Declare a national emergency NOW. Build a wall NOW.” A more exhaustive definition of “emergency,” a more ironclad set of laws – neither would likely discourage Graham from suggesting that he voluntarily cede his legislative duties to the executive.

The Nazi jurist Carl Schmitt, known for his decisionist philosophy – that the truly sovereign person in a state is the one who decides the “state of exception,” effectively when and when not law-defying emergency powers can be used – defined dictatorship as “the exercise of state power freed from any legal restrictions for the purpose of resolving an abnormal situation.” Trump, fortunately, does not have unrestrained dictatorial power, but the words of Senator Graham – along with others, such as Rush Limbaugh, who seemed to celebrate the possibility of an emergency declaration as the vindication of a “one-man show,” Trump’s ability to “go it alone” – suggest a fantasy for dictators and strongmen, unencumbered by legal restrictions and the legislative wrangling and deliberation that make democracy difficult but worthwhile.

What has gone unacknowledged by pundits and scholars, and yet floods the historical record, is the most common justification in democracies for dictatorial forms of executive emergency power: speed.

In debates over emergency legislation in the UK during the First World War, for instance, an MP’s justification for giving the executive the necessary power to have people tried quickly in military courts was the “speedy vindication of the law and the speedy carrying out of justice.” And when Roosevelt called for a “temporary departure” from the standard balance of executive and legislative authority in 1933 to confront the Great Depression, he cited the importance of “undelayed action.”

Although crises that require swift responses do not allow for extensive deliberation, technology today – considering that lawmakers can be reached instantly – makes certain justifications for the immediate delivery of extraordinary executive power seem outdated. Should we not have other means – such as representative emergency committees that vote instantly – to confront emergencies more democratically?

We’re likely to balk at quick-fix suggestions like this, but really: how can we claim America, for instance, is fundamentally democratic if it is a nation where a president who lost the popular vote by a margin of millions has the power to unilaterally use the law – or to go beyond it, some would argue – to manufacture an emergency, to appropriate the billions necessary, and to build a wall, all without congressional approval?

The vociferous and heartening protests to Trump’s declaration, the likelihood that it will be stopped in the courts, the question about the terminological specificity of “emergency” – these are all important considerations, but only part of the equation. Beyond the debates about Trump’s particular contravention of the law, we need to re-examine the vexed role of emergency power itself in America today.

It’s said that people show their true colours in times of crisis. We should hold our democracies to the same standard.

Zachary Fine is a writer from New Orleans. He has written for The New York Times, The Financial Times, Artforum, and The New Republic, among other publications.